When the Government Tells You How to Eat

When nanny-state bureaucrats try to tell you what you can eat or how much, it takes fully engaged courts to keep them in line—like the appellate judges who struck down New York City’s soda ban this Tuesday.  Unfortunately, New York City is not alone in meddling with people’s dietary habits.  On the contrary, busybodies from all levels of government are out there enforcing a mindboggling array of arbitrary and anticompetitive food laws.

This spring, the Orwellian-sounding New York City Department of Health and Mental Hygiene banned the sale of sugary drinks in containers larger than 16 ounces.  Somewhat suspiciously, the Department chose not to include convenience stores, grocery stores, or markets in the ban.  It also exempted sugary drinks made from dairy or soy milk, but not almond milk or rice milk.

Last March, a state trial court judge concluded that the regulation didn’t pass the smell test.  Besides usurping the policymaking role of the city council and state assembly, the regulation bore little relation to its stated purpose—combatting obesity—because it was “laden with exceptions based on economic and political concerns” and “fraught with arbitrary and capricious consequences.”

For his part, Mayor Bloomberg appears surprisingly comfortable with arbitrary regulations.  Appearing on David Letterman the same day the soda ban went down in flames, he quipped that he favors increasing regulations on food companies “as long as you don’t ban Cheez-Its”—which he acknowledged as his personal “addiction.”
But the Founders rejected arbitrary government, and they designed the Constitution to protect us from it.  They created many different protections for liberty, including a system of checks and balances to keep any one branch of the federal government from acquiring too much power.  States have likewise divided power among the three branches of government, but that system depends on judges to strike down laws when other branches have overstepped their authority.

Earlier this week, a panel of judges from New York’s mid-level appellate court upheld the principle of divided government and advanced the rule of law by asking whether New York City’s Department of Health and Mental Hygiene actually had the authority to ban sugary sodas. Concluding that it did not, they did what properly engaged judges should do and said “no” to lawless government overreach.

Similar struggles involving food restrictions play out daily across the country, including Florida, where lawyers from IJ’s Miami office have swung into action repeatedly to help stave off the food police.  In Orlando, Fla., for example, city officials threatened one couple with large fines for growing vegetables in their front yard.  Neighbors love the garden, but the City rejected the idea that people should be free to grow their own food on their own property and banned the couple from planting any “seasonal” plants, which includes most vegetables.  After a huge media outcry, the City has started on the path to allowing gardens, but this is not the only type of restriction that impedes food freedom.

Blatantly anticompetitive food truck regulations are another example of government overreach.  In Sunrise, Fla., some city commissioners are trying to open up their city to food trucks, but another one opposes food trucks because they could compete with his restaurant.  And until recently, Hialeah, Fla. banned mobile vendors from selling within 300 feet of their brick-and-mortar competitors.

As with New York’s soda ban, unreasonable restrictions on how food is produced, sold, and consumed should receive careful scrutiny from engaged judges throughout the country.  Though some people call for greater “judicial restraint” when it comes to striking down laws, too much restraint results in an unchecked legislature and unchecked executive agencies.  Without a properly engaged judiciary, government agencies can easily turn into micro-managing, paternalistic bullies.  We are then left to rely on the self-restraint of public officials, which history shows is no restraint at all.  Though judges are charged with ensuring that the other branches stay within their constitutional bounds, decades of judicial abdication have resulted in a system where judges frequently ignore evidence, take the government’s unsupported factual assertions as true, and accept utterly implausible explanations for government regulations.

The question is not whether judges are being activist or restrained, but whether they are properly performing their role of faithfully enforcing constitutional limits on government power.  As bureaucrats invite themselves into our kitchens, our gardens, and our pantries, we need judges who are willing to engage the facts of every case and insist that the government justify its actions with real reasons backed by real evidence.  Otherwise, our cities will look like Mayor Bloomberg’s paternalistic view of the world, where the government dictates your food choices.  Unless your choice is Cheez-Its.

— Claudia Murray
Claudia Murray is an attorney at the Institute for Justice

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